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2011 DIGILAW 250 (JK)

Parlad Kohli v. Keshav Verma & Ors.

2011-05-12

MANSOOR AHMAD MIR

body2011
1. This criminal revision is directed against the order dated 10.9.20U8 passed by the Principal Sessions Judge, Udhampur, whereby the application moved by the prosecution-State came to be dismissed. 2. Prosecution on behalf of State filed an application for alteration of charge and arraying Ajay Kumar, Yash Pal. Raju and Sanju as party accused in the array if accused with a further prayer that the bail already granted in favour of accused be cancelled. The court after going through the entire record dismissed the application on the ground that prosecution has examined only one witness, namely, Bhagishah after framing of charge and statements of prosecution witnesses, namely, Parimoksh, Mama, Nana and Nani of Bhagishah are yet to be recorded. It is apt to reproduce para-31 of the order herein: "31. So far present case is concerned, it is noticed that when first time the charge was framed u/s 306/34 RFC on 28.9.05, prosecution examined PW Ashok Kumar, Parimoksh and Romesh Chander and after framing fresh charge statement of PW Bagasha has only been recorded. In this backdrop the other witnesses already examined before the framing of fresh charge are to be examined fresh. As such, the only evidence before the court is that of PW Bagasha. It is true that her statement to some extent is inconformity with the statement made before police by her but at the same time it suffers from some infirmities and is to great extent inconsistent with each other. The evidence of Parimoksh has not been yet recorded. Similarly, evidence of Mama, Nana and Nani of PW Bagasha which has a great bearing upon the nature of offence committed in the case and the persons who have committed the said offence. So unless the evidence of these important witnesses is not recorded, this court cannot come to conclusion that there is evidence which requires alteration of the charge or addition of persons named by PW Bagasha as accused. The reasons is that the evidence of PW Bagisha in isolation does not satisfy this court in holding that some other persons named by her besides the accused persons have committed any offence. Nor her evidence can be taken individually for converting the charge to that of murder. In the opinion of the court both these questions can be decided after the other witnesses are examines by the prosecution. Nor her evidence can be taken individually for converting the charge to that of murder. In the opinion of the court both these questions can be decided after the other witnesses are examines by the prosecution. The court is of the opinion that this course of action will be in the interest of justice as well because the evidence of a single witness when there are other witnesses yet to be examined cannot hastily be used for converting the offence or adding some more persons as accused." 3. Mr. Lehar, learned senior counsel argued that there is evidence on the file that Statement of prosecution witness Bhagishah is sufficient for invoking the powers in terms of section 351 of Criminal Procedure Code (for short, hereinafter Code) and also for altering the charge. 4. Mr. Ahmed, learned counsel for respondents 1 & 2 argued that in terms of mandate of section 351 of the Code the trial court can exercise the powers for arraying any person as accused who is not an accused, provided it appears from the evidence recorded by the trial court that the persons are to be arrayed as accused. The statements of important eye witnesses are yet to be recorded. Thus, the application was premature. 5. Virtually the trial court has not decided the dispute/issue but has deferred and left it open for the prosecution-State to lay motion alter the statements of important prosecution witnesses are recorded. The trial court has not passed the order on merits, thus has neither rejected nor granted the application, the same is an interlocutory order in terms of mandate of Section 435(4-a) of the Code. 6. The revision petition also merits to be dismissed on the ground that the persons sought to be arrayed as accused have not been arrayed as party respondents in this revision petition. Ordered accordingly. However, it is provided that the prosecution is at liberty to file an application at appropriate stage, if advised. Trial court is directed to take the trial to its logical conclusion within a period of six months with effect from 9th June 2011. 7. Parties are directed to appear before the trial court on 9.6.2011. 8. Registry to send down the record along with a copy of the order and also convey the same to the trial court.